Salmon and Ors & Salmon

Case [2020] FamCAFC 134


FAMILY COURT OF AUSTRALIA

SALMON AND ORS & SALMON [2020] FamCAFC 134

FAMILY LAW – APPLICATION IN AN APPEAL – PROPERTY – EXPERT EVIDENCE – Consideration of Part 15.5 of the Family Law Rules 2004 (Cth) – Where the primary judge refused permission under r 15.49 for expert evidence other than the single expert but extended the time periods for a conference (r 15.64B) and questions to the single expert (r 15.65) – Whether the applicants have established “a substantial body of opinion contrary to” the opinion of the single expert or “special reason” within the meaning of r 15.49(2) – Interpretation and application of the expert evidence rules.

FAMILY LAW – APPLICATION IN AN APPEAL – LEAVE TO APPEAL – Where the orders from which leave to appeal is sought are a discretionary decision as to a matter of practice and procedure – Whether any discretionary error was made by the primary judge – Whether there is any basis for the grant of leave to appeal – Where the procedures for clarifying the single expert’s opinions had not been employed in advance of the application determined by the primary judge or the application for leave to appeal – Where on the proper interpretation of the applicable expert evidence rules there is no discretionary error demonstrated – Leave to appeal refused – applicants to pay the respondent’s costs.

Family Law Act 1975 (Cth) ss 79, 97(3)

Family Law Rules 2004 (Cth) Pt 15.5, rr 1.04, 1.06, 15.42, 15.49, 15.64B, 15.65
Queensland Uniform Civil Procedure Rules 1999 (Qld) r 429N(3)
Supreme Court Rules 1970 (NSW) Pt 39

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39
Australian Coal & Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25
Bass and Bass (2008) FLC 93-366; [2008] FamCAFC 67
Conias Hotels Pty Ltd v Murphy [2012] QSC 297
Commonwealth v Milledge (1953) 90 CLR 157; [1953] HCA 6
Daniels v Walker [2000] 1 WLR 1382
Demetriou v Demetriou [2019] FamCA 625
D v S [2009] QSC 446
Borriello v Borriello (1989) FLC 92-049; [1989] FamCA 48
Chick and Chick (1987) 12 Fam LR 64; [1987] FamCA 69
Lenehan and Lenehan (1987) FLC 91-814; [1987] FamCA 8
Mallet v Mallet (1984) 156 CLR 605; [1984] HCA 21
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Owners of Strata Plan 58577 v Banmor Developments Finance Pty Ltd [2006] NSWCA 325
Padnal & Padnal (No 3) [2014] FamCA 904
Salt & Salt [2018] FamCA 259
Simonsen & Simonsen [2009] FamCA 698
Walker Corporation Pty Ltd v Sydney Habour Foreshore Authority [2008] NSWLEC 282
FIRST APPELLANT: Mr Salmon
SECOND APPELLANT: B Pty Ltd
THIRD APPELLANT: Mr C Salmon and Ms D Salmon and Mr E Salmon as Trustees for the B Pty Ltd Superannuation Fund
RESPONDENT: Ms Salmon by way of her Personal Legal Representatives Mr Simpson and Ms Simpson
FILE NUMBER: BRC 10433 of 2015
APPEAL NUMBER: NOA

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Salmon and Ors & Salmon [2020] FamCAFC 134
Case
[2020] FamCAFC 134
Decision Date

CaseChat Overview and Summary

The appeal in Salmon and Ors & Salmon was brought by the appellants, the first, second, and third applicants, against the respondent. The appellants sought leave to appeal from the orders made by the primary judge on 24 October 2019. The orders in question involved the refusal of permission to adduce expert evidence other than that of the single expert, although the time periods for a conference and questions to the single expert were extended. The appellants argued that they had established a substantial body of opinion contrary to the single expert or had a special reason to present additional expert evidence, as per rule 15.49(2) of the Family Law Rules 2004 (Cth).

The legal issues before the court were whether the appellants had demonstrated a substantial body of opinion contrary to the single expert's opinion or a special reason to present additional expert evidence. Furthermore, the court needed to determine whether there was any discretionary error by the primary judge in refusing permission to present additional expert evidence. The court also considered whether there was a basis for granting leave to appeal, given that the orders in question were discretionary decisions on matters of practice and procedure.

The court examined the procedures for clarifying the single expert’s opinions and found that these had not been employed prior to the primary judge’s decision or the application for leave to appeal. After interpreting the applicable expert evidence rules, the court concluded that there was no discretionary error demonstrated. The court found that the appellants had not established a substantial body of contrary opinion or a special reason as required by rule 15.49(2). Consequently, the application for leave to appeal was dismissed, and the appellants were ordered to pay the respondent’s costs of and incidental to the application in an appeal.

The final orders of the court were that the first to third appellants’ application for leave to appeal the orders made by the primary judge on 24 October 2019, filed on 21 November 2019, be dismissed. Additionally, the first to third appellants were jointly and severally liable to pay the respondent’s costs of and incidental to the application in an appeal in the amount of $12,250 within one month.

Orders

Orders of the court

1.

The first to third appellants’ application for leave to appeal the orders made by the primary judge on 24 October 2019, filed 21 November 2019 be dismissed.

2.

The first to third appellants be jointly and severally liable to pay the respondent’s costs of and incidental to the application in an appeal in the amount of $12,250 within one (1) month.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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